Criminal Justice: Retribution vs. Restoration: 23

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Since we champion differing ideas of what constitutes a desirable, just culture, the issue between us is not academic, but rather has considerable practical ramifications. If we imagine cases of horrific crimes in which let us suppose punishment of the offender would serve no non-retributive aim, such as deterrence, reformation, incapacitation, etc.

For many, it seems intuitively wrong that someone who has inflicted grievous harm upon us or those we love should not be made to suffer in turn, even if this suffering has no benefits outside gratifying our desire for retribution. Let us grant that this gut response is generally the case: we all, pretty much, have retributive instincts. What follows from this? For Moore, the intensity and ubiquity of our retributive impulses is a sign of the moral reality that retribution is both intrinsically good and the primary aim of the law.

Emotions, he says, are "our main heuristic guide to discovering moral truths" And: "The moral fact of the matter often causes our moral beliefs through the intermediate causing of our emotional responses. Our emotions in such case become good evidence of the underlying moral landscape " , my emphasis. Moore wants to move from an undeniable psychological fact - that we have retributive inclinations - to the moral fact that retribution reflects an objective moral reality in which giving offenders their just deserts is required to satisfy the demands of justice.

But Moore recognizes that retributive emotions often compete against other responses when we think about criminal offenders. We may find, for instance, that when we consider the tough circumstances of some criminals, we are moved to sympathy, a sympathy that might offset to some extent the desire to impose suffering on the offender.

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If so, might it not suggest other responses to crime, such as rehabilitation, restitution, and addressing the multiple criminogenic factors revealed by behavioral science? First, it is only virtuous emotions, he says, which we should generally rely upon as heuristic guides to moral reality: "…in ethics we should recognize that the virtue of or vice of an emotion may often, but not always, be taken as an indication of the truth or falsity of the judgment to which it leads" Second, in developing an overall theory of justice, he explicitly adopts a "coherentist" approach, in which the theory seeks maximum overall consistency among our intuitions and judgments.

This approach differs, for instance, from a foundationalist approach in which certain first principles have privileged status and form the basis from which the rest of the theory is derived. Combining these two desiderata, the way we decide which of our conflicting moral intuitions should be kept and which should be discarded to achieve coherence, is to see which are based in virtuous emotions. Virtue works as a guide to coherence. Unsurprisingly, Moore argues the case that retributive emotions, at least some of them, are virtuous, while the sympathy we feel for certain offenders is not.

Thus we can safely discard our errant sympathies, what Moore calls "moral hallucinations" since they distort our view of moral reality, and hew to the retributive imperative. I shall contest both these claims. Moore, very much to his credit, bends over backwards to present the strongest case against the virtue of retributive emotions, which he then tries to rebut in the chapter entitled "The Moral Worth of Retribution".

He candidly admits that retribution is often motivated by what Nietzsche described with the word ressentiment. Moore says "It may well be that insofar as the retributive urge is based on such emotions as these…the urge is bad for us" But, he points out, there are also virtuous emotions which ground retribution, namely the "moral outrage" that often is inspired by witnessing or contemplating flagrant acts of wrongdoing that cause suffering, and the often appropriate sense of guilt when we ourselves do something wrong. In both cases, we might feel that retributive punishment is fairly imposed on the offender, that it is deserved , whether the offender be someone else or ourselves.

Not to feel these emotions, Moore says, is to be morally defective, and the virtue of such feelings is evidence for the truth of retributivism, since virtuous feelings come with "good epistemic credentials" As Moore says about guilt: "Our feelings about guilt thus generate a judgment that we deserve the suffering that is punishment. If the feelings of guilt are virtuous to possess, we have reason to believe that this last judgment is correct, generated as it is by emotions whose epistemic import is not in question" It is this intuition of desert, generated by guilt and moral outrage, Moore says, that makes it not only permissible to punish wrongdoers, but that makes it morally required to punish them, even if no other desirable outcomes follow from retribution , Assuming for the moment that Moore has indeed demonstrated the virtue and reality-revealing nature of some retributive emotions, what about sympathy, e.

Moore writes: "There are three things to say about this range of moral experience. First, the moral judgment it seems to support does not fit with the much larger set of judgments about responsibility that we make in daily life. In seeking the most coherent expression of our moral judgements considered as a whole, these sympathetic judgements may simply have to be discarded. No area of human knowledge is perfectly coherent.

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Any systematic exposition of our sensory experience, for example, has to disregard certain visual experiences because they give us inaccurate information about the world…The same can be said of our sympathetic responses to disadvantaged criminals" , my emphasis. In other words, to minimize conflict in our judgments, we must disregard the sympathies generated by the adversities undergone by offenders. Such sympathies are inconsistent with our more numerous and powerful retributive inclinations, and furthermore they are "inaccurate" in some sense.

On the face of it, this seems arbitrary, to say the least. Conflict between retributive feelings, even virtuous ones, and sympathetic feelings which at least initially seem virtuous may simply reflect a real moral conflict, and to discount one side of the conflict in order to preserve theoretical coherence might well compromise theoretical accuracy. We may well have both feelings about an offender if not simultaneously, at least in succession , both of which reflect sets of circumstances that pertain to the case.

Secondly, and in response to just this point, Moore goes on to say, "…just as we discount our experience with sticks looking bent when immersed in water because we can explain the experience away, so we should discount any sympathy for disadvantaged criminals if we can explain why we feel that sympathy in terms of extraneous factors. But even if we discount these causes of sympathy as extraneous, surely there are others that are not.

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Contemplating the chaotic, punitive and often dangerous conditions that disadvantaged offenders grow up in often generates sympathetic compassion, for indeed were any of us raised in those conditions, we too would be more likely suffer the same criminal fate. Putting ourselves in the disadvantaged shoes of an offender should inspire sympathy, for if it does not, then we are supposing that we would have been immune to the influences that shaped her.

From a naturalistic perspective, which Moore shares, in which human beings are determined by environment as well as heredity , such a supposition is clearly false, and the lack of sympathy it generates is a clear moral defect. Such sympathy may not outweigh feelings of outrage, but it nevertheless reflects circumstances as real as the crime committed, and so is not a "moral hallucination" on a par with the bent stick illusion. Third and lastly, Moore says about sympathy that ".. Moore goes on to speculate that our sympathies for disadvantaged offenders might be due not to any laudable variety of compassion, but to unconscious feelings of superiority to the offender, or perhaps the elitist refusals to judge others by the standards we impose on ourselves or to acknowledge the moral dignity and autonomy of others If these were the only source of our sympathy, then its moral goodness and epistemic credentials would be put in question, but since there is another robust source, the compassion described above, its goodness stands unchallenged.

This point is the same Moore himself makes about the sources of retributive judgements: some sources are morally dubious, but since others have merit, retribution survives in his theory. To recap: to achieve a maximally coherent theory of criminal law, Moore wants us to jettison our sympathetic responses to disadvantaged criminals. This would give retribution freer reign, no doubt simplifying the mission of criminal justice.

I think Moore is mistaken on all counts. In reverse order, it appears that sympathy can be morally good, that is, it can stem from what we acknowledge is a moral virtue, namely compassion.

  • Against Retribution.
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  • Dick Larson & The Pink Orchid;

Second, such sympathy accurately reflects a significant aspect of moral reality, namely the punitive and distressing conditions associated with increased criminality. To ignore such conditions and the compassion they inspire is to give short shrift to an important dimension of our moral universe.

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Third, we cannot, on grounds of seeking coherence, simply dispense with sympathy as an emotional outlier when forming judgements about criminal offenses. Rather, it justifiably competes with our retributive inclinations. At the very least, then, we must admit the legitimacy of emotions that counteract purely retributive judgements against an offender.

Of course one need not believe, as does Moore, that such suffering is an intrinsic good in the first place. Criminal law has indeed evolved so that its primary functions are to first determine culpability and then impose a just punishment, where what is just is often conceived in terms of desert based on moral responsibility involving an ultimately originative agent.

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  5. Although Moore rejects the super-naturalistic idea of a libertarian agent, his concern is to show that the only broadly consistent account of our present criminal justice practices is nevertheless retributive. He might be correct in that claim, even though other rationales for punishment are widely endorsed.

    However, even granting that Moore has captured the essence of the aims of criminal justice in his theory, this still leaves open the question of whether, given our increasing knowledge of the causes of criminality that lie outside the individual, and the mitigation response sometimes generated by this knowledge, retribution should be the primary aim of criminal justice. To seek the suffering of the offender is just one of many possible responses to crime and injury done to us, and although criminal justice has traditionally taken the imposition of retributive punishment as its primary, often sole objective, this need not remain the case.

    Indeed, various movements to reform the aims of criminal justice are already well established. Since we want to avoid future disasters like the one before us, we want to remedy, not replicate, those factors - biological, familial, social, etc. So as much as we may not like the offender and may well find ourselves wishing him harm , the smartest move in reducing the future prevalence of his offense may well be not to inflict suffering which further normalizes a punitive culture, but to incarcerate him while keeping the aims of reformation, rehabilitation, and restoration paramount. By denying ourselves retributive satisfactions in favor of constructive approaches to both offenders and the circumstances that produced them, we serve a better purpose: the creation of a less punitive, more flourishing culture in which we and those that follow us are less likely to face the temptations of retribution itself.

    It is certainly the case that most of us have retributive impulses from time to time, and that many of us might revel though some might be loath to admit it in the suffering of those who have intentionally and seriously harmed us or our loved ones. But what finally justifies the state in imposing such suffering?

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    Remember that Moore explicitly sets aside the benefits of deterrence, incapacitation, and reformation as serendipitous side effects of punishment — they are not its central aim on his account. In fact, quoting philosopher F. Bradley, Moore says these non-retributive justifications for punishment "are just bad reasons for what we believe on instinct anyway" Since utilitarian justifications are ruled out, the only remaining justification available is that the suffering of the culpable offender is an intrinsic good.

    But what, one might ask, makes it good? From whence comes its value? The only plausible answer, I think, is our bare desire for it: the basic instinct to retaliate against those who harm us confers its value. Suffering is judged "intrinsically" good only because we wish for its realization in the object of our retribution if we do indeed wish for this.

    There is simply no other naturalistic source for its value, once one sets aside the derivative consequential values of deterrence, incapacitation, etc. One might go metaphysical here, and claim that Retributive Good is some sort of Platonic absolute, written into the deepest level of reality. Why is suffering justifiable only for certain classes of offenders?

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    This question immediately suggests that their suffering is serving some purpose which the suffering of innocents does not serve. One can say, well, it just happens that we desire the suffering of offenders who are culpable by virtue of being rational, without excuse, etc. The value of suffering is indeed a function of our desire for it, and our desire just happens to track the rationality of the offender.